# Opposition Brief — Denton v. Hernandez > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0906%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 493 U.S. 801 ## Text No. 88-2034 In The SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1988 GEORGE F. DENTON, et al., Petitioners, Vv. MIKE HERNANDEZ, Respondent BRIEF OF RESPONDENT RE PETITION FOR CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD W. NICHOLS, ESQ McDONOUGH, HOLLAND & ALLEN A Professional Corporation 555 Capitol Mall, Suite 950 Sacramento, California 95814 Telephone: (916) 444-3900 Attorney for Respondent RECEIVED 2020 isa Ive TABLE OF CONTENTS Page BR Ae PRRs REI sihetciscensiiatacignncssndaresaaeoasgdemieaaceedoii ae i SIE Ee TEI wessveth drsndionincssidebinceplahalaciemmaaiclchinaomeicea comedic 2 Pa IIE istithiccisatnsssniiniessiaissarcksicdcabanasgapiessecusniddhammigaaaedsemoi ee ae 2 PEEP ITE Se IRR aise scent cuncsceepn eldest 2 Fe eR NIE UNE sr iss nerdcanscioucupemctnaionicdhdas ieradembcaie anita ome 2 Pe AREER COE CHUN SIMONE siicic cise cesarean neater 2 PROMI DETTE sarssitdecingticctnsicinige aroaasamnucaanetaniapeh euler seapoteadbdedenecaal 5 I. The Effect of this Court's decision in Neitzke v. Williams, PUT OMEN: ceccinatichnnsiedactobacitedtaimmree temic cea ee 5 II Inter-Circuit Conflict as to the Meaning of "Frivolous" Under yf | Se ed sida intemal ease ipiteleteisueaieh babes thapaaeideaeonae 6 88 Factual Considerations in Determining Frivolousness Under a || i tad juitbcsidh snslsudig jalccasebiladananis gyelsetdnoaleda a a CONCLUSION SaaS SoC Bab molsduteeninamscnennineictnias Cases Andersor V Coughlir 700 F.2d 37 43 [2d Cir 1982 é Neitzke v. Williams, No. 87-1882, 490 US 109 S¢ 104 L.Ed.2d 338 ; [raufler v. Thompson, 662 F.Supp. 945, 946 [N.D. Ill. 1987 p Statutes RICHARD W. NICHOLS, ESQ. McDONOUGH, HOLLAND & ALLEN A PROFESSION AL CORPORATION 555 Capitol Mall, Suite 950 Sacramento, California 95814 Telephone: (916) 444-3900 Attorneys for Respondent MIKE HERNANDEZ No. 88-2034 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1988 GEORGE F. DENTON, et al., Petitioners, Vv. MIKE HERNANDEZ, Respondent, Nee eee eee ee BRIEF OF RESPONDENT RE PETITION FOR CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Mike Hernandez, respondent in the above-captioned proceeding, by and through counsel appointed for him by the United States Court of Appeals for the Ninth Circuit, does herewith submit his brief in response to the petition of George F. Denton, et al., for certiorari to said United States Court of Appeals. In what may perhaps appear to be an unusual posture, Hernandez agrees with petitioners that this proceeding is an appropriate one for the granting of certiorari. OPINION BELOW The opinion of the United States Court of Appeals for the Ninth Circuit appears at 861 F.2d 1421 A copy of that Opinion is appended hereto as Attachment 1. A petition for rehearing, and suggestion of rehearing en banc, filed by petitioners herein, was denied by that Court. A copy of that Order is appended hereto as Attachment 2 [URISDICTION This Court has jurisdiction over the certiorari petition filed herein, pursuant to 28 U.S.C. §1254(1) STATUTE INVOLVED 28 U.S.C. §1915(¢): “The court may request an attorney to represent any s+ tho Ah UAE such person unable to employ counsel and may dismiss the case allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” (Emphasis added QUESTION PRESENTED Petitioners have stated the question presented, as follows "Whether a Federal District Court may dismiss a complaint pursuant to 28 U.S. Code section 1915(d) if it finds the complaint wholly fanciful even though the allegations in the complaint do not conflict with facts of which a court may take judicial notice STATEMENT OF THE CASE Prior to 1986 respondent Mike Hernandez, a state prisoner, Qad filed " r separate civil rights complaints pursuant to 42 US.C §1983. On numerous occasion? the United States District Court for the Eastern District of Calitornia had granted Hernandez leave to proceed in forma pauperis, under 28 U.S.C §1915(a), but had pronounced itself unable to “determine trom the present record whether o* not plaintiff's claim is frivolous within the meaning of 28 U.S.C. §1915(d). The District Court had ordered Hernandez to engage document discovery, pursuant to the Federal Ruies of Civi! Procedure, to obtain certain requested information. On April 17, 1986, however, while various discovery motions by Hernandez were pending!, the United States Magistrate filed findings and recommendations that all of those complaints be dismissed, pursuant to 28 U.S.C. §1915(d). On May 5, 1986, the District Court adopted the Magistrate's recommendation and entered judgments of dismissal as to each of those cases. Hernandez filed notices of appeal as to three of those five cases; in each of those three cases, Hernandez had filed with the Court affidavits from other prisoners, which tended to support his factual allegations. The various complaints contained allegations that Hernandez, during night hours while he was asleep, had been drugged and rendered comatose by prison guards, and had then been assaulted and raped in his cell, by those guards and/or by other guards or inmates allowed into his cell by those guards. Because of his comatose state, Hernandez did not claim to be able, personally, to identify any of his assailants, although affidavits from other prisoners did purport to identify some of them. The complaints alleged that Hernandez had sought medical attention for his injuries, and administrative relief prohibiting the commission of further similar assaults, without success. Collectively, the complaints alleged that such events had occurred on 28 occasions over a period of more than two years. The Magistrate's recommendation for dismissal, which the District Court adopted, was based upon the following rationale contained in the recommendation: "The court has concluded that the present five actions lack arguable substance in law or fact and should therefore be 1 Hernandez had sought various documents from his prison medical file, in an effort to obtain evidence which would have tended to support his factual allegations concerning the assaults which are the subject of this proceeding. In light of the dismissal of his actions at the district court level, those discovery motions were never ruled upon. 3. dismissed. Although each complaint, taken separately, is not necessarily frivolous, a different picture emerges from a reading of all five complaints together. Plaintiff alleges that both guards and inmates, at different institutions, subjected him to sexual assaults. Despite the fact that different defendants are allegedly responsible for each assault, the purported modus operandi is identical in every case. Moreover, the attacks occurred only sporadically throughout a three year period. The facts thus appear to be ‘wholly fanciful’ and justify this court's dismissal of the actions as frivolous.” The Ninth Circuit Court of Appeals reversed the dismissals, and remanded the cases to the District Court. Three separate opinions were authored by the panel. The lead opinion affirmed the dismissals on certain claims which are not the subject of the present certiorari petition’, but reversed the dismissals on the subject claims, because those dismissals had been “based upon credibility determinations impermissible under section 1915(d)." 861 F.2d at 1427, slip opinion at 14466. The holding of the lead opinion was to the effect that “[o}nly if the facts alleged are impossible in light of any judicially noticeable fact may the district court find a complaint ‘wholly fanciful’ and hence without arguable substance in law or fact.” 861 F.2d at 1426, slip opinion at 14465 A concurring opinion agreed that reversal was appropriate, but only because Hernandez had not been given prior notice of the alleged deficiencies in his complaints, and an opportunity to correct those deficiencies by amendment, as required by Ninth Circuit case law. The concurring judge agreed that the Magistrate had “erroneously. concluded that Hernandezs allegations were ‘wholly fanciful’ because unlikely” (861 F.2d at 1427, slip opinion at 14467). The concurring judge did opine that, if Hernandez did not subsequently amend his complaints to “add allegations that will establish the connection of each defendant to the deprivations and that will establish that Hernandez has been the victim of unconstitutional conduct, rather than mere ~ The Court of Appeals also reversed the dismissal of Hernandez’ claims under the Eight! Amendment, involving allegations of (a) deprivation of a blanket for an unspecified penod of time, (b) deprivation of shoes for a month, and (c) physical and verbal abuse by pnson officials negligence,” then a dismissal of the complaints would be appropriate, as urged by the! dissenting judge. A lengthy dissenting opinion (861 F.2d at 1427 et seq., slip opinion at 14467 et seq.) set forth the view that Hernandez’ various complaints represented nothing more than “the hallucinations of a troubled man" (861 F.2d at 1440, slip opinion at 14495), and that no amendment could cure that problem. The California Attorney General, representing the appellees (petitioners before this Court), filed a petition for rehearing and suggestion of reheaz.ig en banc. He stated therein that the question to be considered was “how a district court is to determine whether a complaint is wholly fanciful.” Respondent respectfully agrees with the Attorney General's characterization of the critical issue in this case. Unfortunately, the Court of Appeals declined the invitation to clarify its views on the subject, as a result of which the present certiorari petition was filed. ARGUMENT I The Eff f this Court’ ision i i illi _ 87- On May 1, 1989, this Court issued its opinion in Neitzke v. Williams, No 87-1882, 490 U.S. __, 109 S.Ct. ___, 104 L-Ed.2d 338. The Court held that the fact that a pro se complaint fails to state a claim sufficient to withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure does not automatically render that complaint subject to dismissal, as frivolous, under 28 U.S.C. §1915(d). The instant case represents the next step of the Neitzke analysis. Neitzke establishes the proposition that Rule 12(b)(6) and Section 1915(d) “were devised to serve distinctive goals" (104 L.Ed.2d at 347), and that while the two standards have considerable overlap, they are not identical. Neitzke also establishes that Section 1915(d) accords to district judges “the unusual power to pierce the veil of the complainant's factual allegations and dismiss those claims whose factual contentions are clearly baseless" (104 L.Ed.2d at 348). The Court has even 5- articulated that Section 1915(d) would extend, by way of example, to “claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.” Ibid The question to be asked, in this regard, is how or under what standards a district judge is to conclude that a particular claim is “clearly baseless” because it is “fantastic or delusional.” That question was at the heart of Hernandez appeal, and a majority of the Court of Appeals panel appears to have concluded that “lack of credibility” and “unlikelihood” are insufficient to qualify within the “clearly baseless” standard. The lead opinion has answered the standards question, correctly in Hernandez’ view, by concluding that a district court must be able to take judicial notice of facts rendering the allegations of the complaint untrue, before that court can dismiss a complaint as factualiy frivolous under 28 USC. §1915(d). The dissent obviously contests that view. In light of the multiplicity of opinions, Hernandez is in agreement with the assertion of the California Attorney General that the Opinion of the Court of Appeals is confusingly drafted fl. Inter-Circuit Conflict as to the Meaning of “Frivolous” Under §1915(d) Petitioners urge upon this Court a definition of “frivolous,” within the meaning of 28 U.S.C. §1915(d), as “beyond credulity.” Petitioners assert that there is some support for this definition in a holding of the Second Circuit (Anderson v. Coughlin, 700 F.2d 37, 43 [2d Cir. 1982]), and of a district court within the Seventh Circuit (Traufler v. Thompson, 662 F Supp. 945, 946 [ND Dl. 1987}) As petitioners concede, however, the majority of the circuits adhere to a less discretionary definition of the term “frivolous,” and require that the plaintiff be able to “prove no set of facts” (Sixth, Eighth and Eleventh Circuits) or to “make no rational argument in law or fact” (Fifth, Seventh and Tenth Circuits), or that there is “indisputably absent any factual basis” for the claim (District of Columbia Circuit). See, e.g., 52 A.L.R. Fed. 679 et seq., Standards for This Court's opinion in Neitzke, however, may be read to support the “beyond credulity” standard of the Second Circuit. In that context, petitioners’ application for review by this Court is appropriate. allegations as “unlikely.” A number of factors, however, are shown in the record to support at least the possibility of another conclusion, including the following: 1. Hernandez had moved for document discovery of various of his prison medical records, supposedly in aid of being able to support his credibility by showing that he had in fact sought the medical attention which he alleged’; 2. Hernandez had filed affidavits from three other prisoners which purported to support his contentions that guards and other inmates had entered his cell at night; and 3. The Magistrate had opined that Hernandez’ allegations, taken separately, were not frivolous, and that it was only their identical nature in multiple instances that rendered them frivolous. Hernandez respectfully suggests that there is nothing inherently incredible, or “wholly fanciful,” about the proposition that drugs exist, or that homosexual activity occurs, or that inmate-guard relationships are less than amicable, in prison settings. This is not a case where a prisoner is alleging that “little green men from Mars” have taken over his mind by radio waves, and that prison authorities are responsible therefor! Allegations of that type would no doubt qualify for inclusion under the “fantastic or delusional scenarios” 3 if Hernandez’ claims can properly be dismissed as “fanciful,” such a result will occur (a) in the face of the Disirict Court's inability to make such a determination on the basis of the face of his individual pleadings along, but (b) in the face of the District Court's failure to allow him to attempt to secure objective evidence which might tend to support those ciaims. Ja | trom the repetitive imbe ( allege language of Neitzke. Bui, aside | t) incidents, Hernandez’ claim that he was unaware were occurring, and his claim that prison guards were is nothing in the inherent nature of Hernandez’ allegations tha with judically noticeable facts about the “seamier” side of pris CONCLUSION The Ninth Circuit Court of Appeals, consistent with a ma are impermussiDle other circuits, has held that determinations of credibility the decision of whether an in forma pauperis complaint should be d SS : frivolous, pursuant to 28 US.C. §1915(d This Court's recent decis Neitzke v. Williams, supra, appears to place that neept il é decision of the Court of Appea Sin the instant : the reasons raised oy petitioners. Accord Mik does not oppose the petition for writ 7) ‘ rar ‘ Attorney General on behalf of Georgs lent ‘ DATED: July 6 1989 Respect! chard WW) Urekola Richard W. Nichols McDonough, Holland & Aller \ Professional Corporat Attorney (Appointed t ted States ( rt ‘ \r ” crwor > f HMENT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Mike HERNANDEZ, Nos. 86-2139, Plainuff-Appeilant, 87-1693/1694 v. } D.C. No GeorGE F. DENTON, et al., CV-S-83-645-LKK Defendanis-Appellees. OPINION Appeal from the United States District Coun for the Eastern District of California Lawrence K. Karlton, District Judge. Presiding Argued and Submitted January 12, 1988—San Francisco. California Filed November 23, 1988 Before: Ruggero J. Aldisert.* J. Clifford Wallace. and Mary M. Schroeder. Circuit Judges Opinion by Judge Schroeder; Concurrence by Judge Wallace: Concurrence and Dissent by Judge Aldisert SUMMAR\ Civil Rights/Prisons and Jails/Courts ana Procedure The coun of appeals affirmed in pan and reversed in pari a district court judgment. The court held, inter alia. that the *Honorable Ruggero J. Aldisert, Senior United States Circuit Juage for the Third Circuit, sitting by designation 14453 14454 HERNANDEZ V. DENI district court erred in making a credibility determinate dismissing a prisoner's pro se complaint alleging numerous prison rapes as “wholly fanciful.” Appellant Mike Hernandez. a prisoner at Vacaville Medi cal prison in California filed in forma pauperis suits agains! prison officials at a number of prisons. Hernandez filed hve pro se complaints alleging 42 US.C. § 1983 violations acluding due process claims that he was placed in adminis trative segregation without written notice of reasons. an opportunity to present evidence. have an attorney. represent him, and without written justification. The complaints also alleged Eighth Amendment violations for having to sleep on the floor without a mattress for one night and without a blan- ket for an unspecified number of nights. that he was not ssued shoes for a month. and that he was physically and ver- bally abused by prison officials. The complaint also alleged that he was drugged and homosexually raped over 28 times h both prisoners and prison officials. The district court. on tt magistrates recommendation. dismissed the complaints because. when viewed together. the rape allegations were f1 olous under 28 U.S.C. § 191¥d) {1] The district court properly dismissed the due process claims: the Due Process Clause does not require detailed writ ten ndatice of charges. representation by counsel. an opp nity to present witnesses. Or a written decision justifying the reasons for placing a prisoner in administrative segregat) {2} However. Hernandez may be able to state an Eighth Amendment claim based on his having been deprived of shoes for a month and that he slept without a blanket for an unspecified amount of time as they may indicate wanton infliction of pain or deliberate indifference on the part o! prison officials. Accordingly. Hernandez should be allow ed io amend his complaint to claim this deprivation. [3] But. Her- nandez allegation that he slept without a mattress for only one night is insufficient to state an Eighth Amendment claim and no amendment can alter that deficiency. [4] However HRN 4NDEZ V. DENTON 14455 Hernandez’ rape claims by prison guards and prisoners. if construed liberally, may indicate deliberate indifference on the part of prison officials. [5] Moreover, prison beating guards may involve a deprivation ofa liberty inierest in viola tion of due process and insufficient protection of a prisoner resulting in harm inflicted by other inmates may also violate a prisoner's due process rights. [6] A district court should not dismiss On its Own motion an in forma pauperis complaint unless it has no arguable substance in law or fact, including the recitation of bare legal conclusions without supporting facts, the claims are redundant or barred by res judicata, the defense 1s obvious and complete based on the pleadings and court records, or the claims are “wholly fanciful.” [7] In this case, the district court erred in dismissing the claims as wholly fanciful based on an exercise of credibility determin. tion because the alleged facts are not impossible in light any judicially noticeable fact Judge Wallace. concurring. agreed that Hernandez sh be allowed to amend his complaints. if he can. to add alleg tions that would establish the connection of each defendar to the deprivations that he claims and that he has been tt victim of unconstitutional conduct rather than mere neg gence. However. should Hernandez fail 10 remedy the prot lems in his complaint. the court should dismiss his claims a } Irivolous Judge Aldisert concurred with the majority regarding tt dismissal of the due process and the Eighth Amendment mat tress claims. However. he dissented from the Eight Amend ment rape and related claims. Judge Aldisen opined that th: majority was giving Hernandez a second notice that his com plaints were to be dismissed and could be amended a second lume to make factual averments to permit him to mount the hurdle of frivolity 14456 HERNANDEZ V. DENTON COUNSEL Richard W. Nichols. McDonough. Holland & Allen. Sacra- mento, California, for the plaintiff-appellant Patricia C. Esgro, Deputy Attorney General. State of Califor- nia, Sacramento, California. for the defendants-appellees OPINION SCHROEDER. Circuit Judge Appellant is a prisoner proceeding in forma pauperis in Suits against prison officials at a number of prisons. He appeals the district court’s dismissal of three complaints as “frivolous” under 28 U.S.C. § 191 S(d) Appellant filed five pro se complaints alleging 42 U.S.C § 1983 violations. The three complaints at issue in this appea made the following allegations (1) Due process claims: Appellant alleges that he was placed in administrative segregation without written notice of the reasons. afm Opportunity to present evidence. an opportunity to be represented by counsel or written justification. In addi- tion. appellant alleges that he was punished before receiving procedural due process in connection with other alleged rule violations (2) Eighth amendment claims other than rape claims Appellant alleges that he had to sleep without a mattress for one night and without a blanket for an unspecified period of time. In addition, he alleges that he was not issued shoes for a month. Finally, appellant alleges physical and verbal abuse by prison officials; mosexua rape Over l prison officia’s at different institutions The district court referred all cases to a magistrat deiendants had been served and had answered with respe some but not all of the claims. The Magistrate reviewed a claims and recommended that the district court dismiss then because the complaints, viewed together, indicated that appellant's rape allegations were frivolous. The magistrate did not discuss the other claims. The district count fol! the magistrate’s recommendation and dismissed pursuant 1 section 1915(d), which provides in pertinent pan as f The court may dismiss [a case proceeding in f pauperis] if the allegat nN Of poverty 1s untr Salished that the action 1s ft SB OhT oe By j V ha - i that whe r ~ at nti failure to Sta 3 nT msn me | ce sexplainingt the plaintiff the deficie es ar 1} pla nif amend A ( nm &O9 F 3 34 + Yin Cir. 198 arim-Pana} l 4nge / \ Q ¢ 98. ship op 634 9th Cir. Fe é Because pro se litigants are unskilled in the law. th prone to pleading errors. Without guidance. amendment these litigants are made without an understanding of the ciencies and are usualiy insufficient to cure deficient p ings. Thus, when instructing pro se litigants to amer surts should briefly explain the complaints’ def the pro se plaintiffs will be better equipped to amer rectly. Nol/, 809 F.2d at 1448. However. if it “is abs clear that the deficiencies of the complaint could not be by amendment,” the district court may dismiss. Fran Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984)(quoting 14458 HERNANDEZ V. DENTON Broughton Cutter Laboratories, 622 F.2d 458. 460 (9th Cir 1980)). {1] The procedural due process claims before the district court do not appear sufficient on the face of the complaints We have ruled that, because prison safety 1s paramount. the procedural due process rights of prisoners are adequately pro- tected by post-segregation decisions that administrative seg- regation is justified. Touissant v. McCarthy, 801 F.2d 1080. 1100 (9th Cir. 1986), cert. denied. 107 S. Ct. 2462 (1987) “(T]he due process clause does not require detailed written notice of charges, representation by counsel or coun- sel-substitute. an opportunity to present witnesses, or a writ- ten decision describing the reasons for placing the prisoner in administrative segregation.” Jd at 1100-0!. In this case. appellant alleges that he was placed in administrative segrega- tion without written notice. an opportunity to present evi- dence. an opportunity to be represented by counsel or written justification: appellant did receive post-depris ation hearings Appellant's claims fall squarely within 7owssants holding Therefore. he does not state a claim for siolation of due pro- cess and no amendment could cure this deficiency. These claims should be dismissed The district court did not address the eighth amendment claims when it dismissed appellant's complaint. The eighth amendment prescribes punishments incompatible with “evolving standards of decency” such as those “so totally without penological justification that [they] result{] in the gratuitous infliction of suffering.” Hoptowity Ray. 682 F.2d 1237, 1246 (9th Cir. 1982\quoting Gregg » Georgia 428 U.S. 153. 173 (1976)). Appellant alleges that he had to sleep without a mattress for one night and without a blanket for an unspecified pcriod of time, that he was not issued shoes fora month, and that he was physically and verbally abused by prison officials. “Prison officials have a duty to take reason- able steps to protect inmates from physical abuse.” Hopiow it, 682 F.2d at 1250. Physical and verbal! abuse by officiais indi- Hernandez. DENTON 144589 cates a deliberate indifierence by prison officials to the safety needs of prisoners, therefore, appellant has stated an eighth amendment claim based on physical and verbal .abuse because such abuse is “totally without penological justification.” Jd at 1237. [2] In addition, appellant may be able to state an eighth amendment claim based upon his allegation of deprivation of shoes for a month. Appellant has not alleged additional facts suggesting deliberate indifference or gratuitous infliction of suffering. He may. however, be able to state an eighth amend- ment claim with respect to the shoes if he amends his com- plaint. He should be permitted an opportunity to amend Appellant alleges that he slept without-a blanket for an unspecified amount of time in a room across from broken windows. Appellant similarly has alleged no additional! facts to indicate wanton infliction of pain or deliberate indiffer- ence. but appellant should similarly be allowed to amend this claim of deprivation [3] Appellant's allegation that he slept without a mattress for only one night 1s insufficient to state an eighth amendmen: violation and no amendment can alter that insufficiency We affirm the district court’s dismissal of his claim for one night's deprivation of a mattress The district court’s dismissal of appellant's homosexua rape claims as “frivolous” under 28 U.S.C. § 191 S(d) deserves more eatensive discussion. For the purposes of determining whether a complaint is “frivolous.” the coum presumes tha: the plainuff s allegations are true. Franklin, 748 F.2d at 122s In addition. courts must construe allegations in pro se com- plaints hberall,. Shapley v Nevada Bd of State Prisor Comm'rs, 766 F.2d 404, 408 (9th Cir. 1985) : [4] If appellant's rape claims are not “fnvolous.” thes may state claims for violation of both the eighth amendment and 14460 Herwnanpez v. Dentos the fourteenth amendment. The eighth amendment dictates ‘that prison officials may not be deliberately indifferent to the safety needs of inmates because such indifference may resul! in the unnecessary infliction of pain. Hoptowi! 682 F.2d at 1250. Appellant's allegations of rape by prison guards, if con- strued liberally, indicate deliberate indifference. His allega- tions that the guards allowed his rape by other prisoners construed liberally, also indicate deliberate indifference [5] In addition, prisoner beatings by guards involving excessive force amounting to brutality are deprivations ofa liberty interest in violation of due process WcRarie v Sh moda. 795 F.2d 780, 785 (9th Cir. 1986). Appellant's allega- tions that he was raped by prison guards are no less troubling than the claims of beatings in McRorie. Therefore. they state a claim for violation of appellant's substantive due process rights Finally. insufficient protection of a prisoner resulting 1 harm inflicted by other inmates may also + iolate the prisor er's due process rights. Youngberg v Romer 4s7 US 30° 315-16 (1982) mght to personal security protected by sut stantive due process and not extinguished by imprisonment Escamilla. City of Sania Ana. 796 F.2d 266. 269-70 (9th Cir 1986\pohce have a duty to protect individuals if there 1s a “custodial relationship”). See Orpiano \ Jonnson. 6. 2 F.2d 1096. 1101 (4th Cir. 1980)\af prison officials know of per a- sive risk of harm to prisoner and fail to protect that prisoner prisoner has a viable section 1983 claim for s1olation of his constitutional rights). cert. denied. 480 U.S 929 (1981). In this case. appellant alleges that prison guards allowed other inmates to enter his cell and rape him. This allegation if not frivolous. appears to state a claim for violation of appellants substantive due process righis The district court, however, deemed the claims frivolous Disposition of the rape claims therefore requires some under- standing of what is meant by “frivolous.” This court ha Herenanoezy Desato- 44 cra >d th Irisolous” standard under section |9 ength in Franhiliy Murphy 745 F.2d 1221 (9th ¢ We there adopted procedures proposed by the Federal! Jud al Center in Recommended Procedures for Handling Pr r ( R ghis Cases in (hn Federal Court $7.58 y* That :afluential study, chaired by Judge Aldiser. re mended that if a prisoner meets the economic requrremer ‘ hiue rin forma pauperis status, the court should permit { 2 the complaint under section 191 5(a) and conduct a separ and independent inquiry into whether the action is “fr or malicious” under section 191 5(d). It noted that the def- tion of “frivolous” may be influenced by Supreme Court discussing standards for dismissal of pro se complain 60-61. See. eg. Haines v. Kerner 404 US 519. $2 reh g denicd 408 US. 948 (1972). See also. Ander nia 386U.S 738. 744 reh'g denied. 388 LU S 924 347 noin a 4:Fferen? : a context thata ntention isf legal points [are] arguable n their m v i ega sul en n standa ? . tha ad aa as e - c rc 4 c ai Ku r ed Ku nlaint < he dice ed upon proper nr , d aim u reiiei ma. Ce gran rhs he ndd Te ha he w are 3 oporn ofh aim which wou ~ } 404ULS a *4 2 . - (Qu 2 S 4 34.4 “a h ~ 7 * usness under se s) n ntical to the 12(b4) lega! stand S ‘ perm the distr um upon en rT 4 - merit : - seas ti weec ul pa eritiess Claims at anea slag r a at must De tlaaen that section Yidc J:SMiSsa abused. See Bour Smith. 43 > 8 Se y er ave nc 5 nal right of access he unt 1446) Heranannezs Diston sidering section 1915(d) dismissals we thus look not only to the face of the complaint and the matters actually pleaded. but beyond to whether the claims have arguable substance in law or fact. As the Seventh Circuit has explained Rule 12(b)(6) permits the dismissal of a complaint for failure to state a claim upon which relief can be granted only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” (citations omitted). Under § 191 S(d). in contrast. an in forma pauperis. pro se complaint can be dismissed sua sponte by the district court only if the petitioner can- not make any rational argument in law or fact which would entitle him or her to relief Thus. the § 191 5(d) test is less stringent than the Rule | 2(bx6) dismissal standard Wola vs Faulkner. No. $7-1417. shpop at $(7th Cir Jan 12. 1988). This is a more lemenmt standard because [nleither [the opporunity to further develop a claim]. nor the sharply honed adversarial exchange involved in a Rule 12(b#6) motion and opposition are present when dismissal 1s sua spore Sua sponte dismissal 1s therefore 2 much more truncated pro- cess than is dismissal under Rule 12(b6). In giving effect to the intent with which Congress created the narrow exception in section 191 5(d) for sua sponte dismissals. this difference must be taken into account Brandon v. Dist of Columbia Bd of Parole 734 F.2d $6. $9 (D.C. Cir. 1984). cert denied. 469 U.S. 1127 (1985) {6] Thus. 'n Franklin we held that pro se prisoner com- plaints may be dismissed on the court's own motion and prior to service. but only in limited circumstances: a district court Heexanoezs Destin 14440 May not dismiss an in forma pauperis complaint uniess it has no “arguable substance in law for] fact” Franklin 745 F 2d at 1227 (adopting standard in Wasson » Aulr $25 F 2d 886. 892 (Sth Cir. 1976)) See also Brandon 734 F 2d at $9 (claim not viable). Crisafiv Holland 655 F.24 1305. 1307-08 (DC Cir. 1981 (no suggestion of supporting facts). fur: + Parr 758 F 2d 1254, 1258 (8th Cir. 1985 face of complaint shows “msuperable bar to relief Wquoting Jackson Sanmi!! Co + United States $80 F.2d 302, 306 (8th Cir 1978). cert denied 439 US. 1070 (1979)). We have recognized several possible bases which may jus- tify a district court's decision to dismiss an in forma pauperis complaint as having no arguable subsiance in law or fact First. a court may dismiss as frivolous complaints that recite bare legal conclusions without am) supporting facts Frar« 748 F.2d at 1228 See Tripatiss First Nar? Bank & Truss 42 F.2d 1368. 1370 (9th Cir 1987) Second. a coum may dismiss if the plaints clarms are redundant or barred by res pudicata because of pres sous it gation Tripar: 821 F.2d at i3°O See Van Uerers Aforgs $18 F.2d 366. 368 (8th Cir. cer’ dered 323 US ave (197S) The district court may review its own records Getermine whether. given previous coum documents the plasntif’'s claims are redundant S:orer s Rag: 322 F 2 3144. 316 09th Cir 1963). cers deri 3768 U § 82 +3 Third. we have observed that “[ajn action mas be dis mussed under section 191 id) where the defense is compiler: and obs ious from the face of the pleadings or the court's o«7 records.” Franklin 748 F 24 122). 1228 Fourth. a court mas dismiss a claim that us founded or “wholly fanciful” factual allegations /d ft appears tha: the district court viewed the rape allegations im this case as fanc)- ful because it did not believe so mans similar episodes could have occurred However. the district court could not proper! i. f a ; 5 : , al ed a standard f friy "es ws) ' exe redih — 7] In se nm 1915(d) dismissal of act a wt we musia rdingly look to a standard which f . a al on grounds of a credit assessment S andard ss found in the principles of judicial n c ndeed, in authorizing dismissal of complaints founded wh fanciful” factual allegations in Franklin. we re suoted authorits in tw ther circuits applying a ¢ standard in assessing “fanciful aliegatior “oo 4ismmiss as fr y mplaints re ne Ra ns with no suggestion of supy , postulating events ar rcumstance ‘ kind Sin a mt might a ' ' - , > F k , ubie reasonable dispute becau . nd ready determina ne oo d anr rea nat De Ques ed. RE E Cleary. Af k's Hand i Jer 329-3 2c ec ’ Such ar anG 2 %% ftequirec ii Courts are 1 maac state ff ble for meritonous prisoner claim stitut a’ c va 4 ” \ _ b ’ appea ar | " hye je nda ; “e Admitted i1 1S tempting toe a mpia at the pieacing ag fae ¢ - ther tan |however). this 1s another instance which in the long run makes waste Durning. 139 F.2d 774, 775 (CA }) Kcitation omitted E ste 429U S at 112-13 (Stever : many Yakah: S49F 4 1) ¢ ne Justice Stever Brar 734 &§ F.2d at 1258. Or f the fa alleged a ar , d noticeaDie ta ma r npla wb far ; hence & 4 ein ia ria I ta alice r 4 ee \ua) fay Lecemb a4 + $ c h Ff n fF , ar 4 Va He alieges rape be \ his arn - id been drugged . 92 i mae ar iT se kud ape air ne piaints al.ege ar f t “i'd simiuiar ir ; . man similar incidents occurred B “e r ¢ that none o then 7 J “ T ™ source t te s they did n happe By determining the {nv ne a e » the 4 - he mer fact ; ‘ , a 4 ‘ guar 944 : enting . ¢ VU “ > are ) ; 4 : ak 14466 Hernanpezs. Distos determination by the magistrate that appellant's claims were not credible. This is not permissible. Franklin. 748 F.2d at 1228 The magistrate himself stated that “although cach com- plaini. taken separately. is not necessarily frivolous, a differ- ent picture emerges from a reading of all five complaints together.” If the district court had reviewed appellant's complaints individually and had treated the factual allegations as pre- sumpuvely truthful. it could not have dismissed them as friv- olous because they are not “wholly fanciful”: appellant's allegations of needle marks on his arms and other evidence of homosexual rape present claims with an arguable basis in fact We affirm the district court’s dismissal of appellant's proce- dura] due process claim and his eighth amendment claim based on deprivation of a mattress. However. we reverse the district court’s dismissal of the remaining eighth amendment claims because the district court never addressed them and never Ciered the appellant a chance to correct deficiencies through amendment. We reverse the district court's decision on the rape claims as we!!. because the dismissal was based upon credibility determinations impermissibdie under section 191 Sid) REVERSED AND REMANDED “WALLACE. Circuit Judge. concurring: I concur in Judge Schroeder's opinion insofar as it reverses the district court’s dismissai of Hernandez’s claims based upon alleged deprivation of footwear. rape. and other physi- cal abuse. Under the controlling precedent of this circuit. No// v. Carlson, 809 F.2d 1446 (9th Cir. 1987), unless it 1s “absolutely clear” that a pro se civil rights plaintif™s com- HERNANDEZ V. DENTON 14467 plaint could not be amended to allege constitutional viola- tons, the district court errs by dismissing the action without notifying the plaintiff of the complaint’s deficiencies and allowing him leave to amend. /d. at 1449. Here. as in Nol/ Hernandez amended his complaint, but did so without the benefit of a statement by the court notifying him of the defi- ciencies in his pleadings. Jd. The magistrate’s recommenda- tions to the district court, which erroneously concluded that Hernandez’s allegations were “wholly fanciful” because unlikely, did not serve as adequate notice of the complaint's deficiencies under Noll. Thus, while I agree with Judge Aldi- sert that Hernandez’s various complain’s faiied to state claims upon which relief could be granted, see Aldisert. J . dissenting, reversal is required under Nol/ to allow Her- nandez a chance to remedy the deficiencies in his complaint As Judge Aldisert points out in his persuasive dissent. it is not enough for a complaint to allege conclusions that are merely “possible.” a plainttff must allege facts from which the liability of each defendant can rationally be inferred | agree with Judge Schroeder that Hernand# should be allowed to amend his complaints, if he can. to aad allegations that wil! establish the connection of each defendant to the depriva- tions claimed by Hernandez and that will establish that Her- nandez has been the victim of unconstitutional conduct rather than mere negligence. However. I write separately to emphasize that. should Hernandez fail to remedy the prob- lems in his complaints after being informed of their deficien- cies, his claims properly may be dismissed as frivolous for the reasons stated in Judge Aldisert’s dissent ALDISERT, Circuit Judge, concurring and dissenting When Mr. Monroe and his family were routed out of bed in the middle of the night by the Chicago police, and made to stand naked in their living room while the cops ransacked 446% HERNAN i BD room in their home. emptying drawers and ripping mattress covers, the Supreme Court took long overdue action In Monroe v Pape, 365 U.S. 167 (1961). the Court resu tated, if not resurrected, the remedy of the Civil Rights Act of 1874. the now familiar 42 U.S.C. § 1983. Since that day. this federal remedial statute has been successfully utilized rect tens of thousands of civil rights violations of all de [ tion, in high school classrooms to maximum securily wings of us cor state prisons Section 1983 has been a major force in protecting the ind vidual from countless abuses by the city. county. and State We have become a more civilized societ, because of the pro tections it affords those under police arrest or confined t nenal institutions. Thanks to section 1983. and concurrent prison reforms. we no longer tolerate the degrading exper ences ponraved in film classics such as Paul Muni's powe as Burns in “] Has a Fugitive t e Georgia Cl Gang.” or Pau! Newman's portrava! af “cove! Hand 1 Nor do we tolerate the dehumanizine treatment tt DI ns. where a - dec } Iripy d of his name. addres b an k . t r tossed ir ole” ind ely. at the s Pua It is with sympathy for the cor pris nthusiastic endorsemeni of U Mr 8§ p extended to state prisoners by the filing or threat of filing rights acuons. and the profound sensitivity that n t extended to pro se petitions for relie!. thai | review the cists urt’s dismissal of Mixe Hernandez complaints i join Judge Schroeder's opinion to the eatent that affirms the district cour’s dismissal of the procedural due rocess claim and the eighth amendment claim based on deprivation of a mattress. | do not agree with the majority s analysis of the other claims set forth b, Judges Wallace and HERNANDE De» 44 sci jer. | would affirm the judgment of the d all respects. for reasons other than those given by the d Let it be understood at the outset that what divides tI panel on the remaining claims is a very narrow issue. i don nti read my colleagues’ opinions as deciding that the pla many claims can, at this time, pass muster when measured against standards of frivolousness. | think the entire panel 1s unanimous in this respect. What divides us 1s that m) leagues seem to feel Hernandez was entitled to a second not that his complaints were to be dismissed, and that, some! he can amend hi mplaints again (all three complaints ha been amende least once). and make factual averments s ficient to permit him to mount the hurdle of frivolit Thus. we disagree only on procedure. Because Herna mplaints are already fact-specific, setting forth a narrative of that which occurred first at Folsom pnson a! at Vacaville. 1 believe that no amendment of fa the fatal deficiencies that permeate al] his lab ¢ named defendants. The necessary fact f mm he major premise of his legal! argun I A be enlarged or altered to suppor p I inference oO! T i Where a complaint fails to state aclaim on which be gr e are two levels in the preliminary pr aa . } - be dism1i ad The Hr gs a compiaint ma e dismissed ne under the authority of 28 U.S.C. § 191 5(d). even prior t vice of the complaint upon the defendant. Frans Mfurphy. 745 F.2d 1221, 1226 (9th Cir. 1984) (Frank Under section 1915(d), the court may dismiss the case if sat fied that the action is frivolous. After service upon the defen dant, the court may grant a motion for dismissal under 12(b)(6). F.R. Civ. P 14470 Herxanpez ¥. Dixntosn The district court dismissed Hernandez’ rape allegations as frivolous, basing its judgment on the recommendation of a magistrate. The magistrate decided that each complaint. when read independently of the other complaints filed by Hernandez, “is not necessarily frivolous,” ER 34 at 5, but that “a different picture emerges from a reading of all five com- plaints together.” Jd. The magistrate relied on the test for fri- volity set out in Franklin—specifically. that the concept of frivolous embraces complaints “postulating events and cir- cumstances of a wholly fanciful kind.” Franklin, 745 F.2d at 1228 (quoting Crisafi v. Holland, 635 F.2d 1305. 1308 (D.C. Cir. 1981) (per curiam)). The magistrate found Hernandez rape allegations “wholly fanciful” because they were reiter- ated in several different compiaints alleging the same “modus operandi.” but involved different prison officials and inmates at different institutions Like my colleagues. 1 would not accept the reasoning of the magistrate adopted by the district court. for under the cir- cumstances of this case. that would amount to making credi- bility findings on the pleadings. As Judge Schroeder correct!) points out. in a section 191 5(d) adjudication. we must assume the credibility of the plaintiffs allegations unless the, run counter to law. human behavior. or permissibie inference: ] would affirm the district court’s dismissal for entirely dif- “crent reasons. a practice permitted in this Circuit. Harc/i 1 Reliance Ins. Co., 758 F.2d 409 (9th Cir. 1985): Salmeron United States. 724 F.2d 1357, 1364 (9th Cir. 1983): Ang/e 1 United States. 709 F.2d 570. 573 (9th Cir. 1983). I would hold that even if we credited every factual allegation in Her- nandez complaints. the complaints are frivolous and mn opportunit, to amend can possibly cure that deficiency In each of the complaints at issue in the three appeals before us. Hernandez included a very detailed statement of facts. These facts. if believed, do not make out a claim “on the basis of reasonable inferences and not mere speculation.” - HERNANDEZ ¥. DENTON 1447] Edward J. Sweeney, & Sons, Inc. v. Texaco. 637 F.2d 105, 111 (3d Cir. 1980) The district court's dismissal of the complaints as frivolous is Subject to de novo review by this court. Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987); Rizzo 1 Dawson, 778 F.2d 527, 530 (9th Cir. 1985). Our role here is to determine whether, as a matter of law, the claims are criti- cally deficient of the minimum quantum of fact, reason, and law from which the plaintiff might-possibly be entitled to relief. In exercising this review, I proceed on the assumption that “plaintiffs sworn allegations are . . . uncontroverted and entitled to the usual presumption of truth.” Franklin, 745 F.2d at 1228 My ultimate conclusion is that the multitude of allegations expressed in the separate compiaints filed 1n the district court do not qualif\ for further consideration. I agree with the dis trict court’s conclusion that the allegations are frivolous and therefore should be dismissed under 28 U.S.C. § 191 S(d) ll My point of beginning is a discussion of how the courts have interpreted the statuton term “frivolous ~ “The court may dismiss the case if satished that the action 1s frivo- lous or maiicious.~ 28 U.S.C. § 191 5(d). The most familiar coun definition of frivolous. that in 4nders v. California, 38¢ U.S. 738 (1967). 1s phrased in the negative. Anders states that a contention 1s not frivolous if “any of the legal points [are] arguable on their merits.” /d. at 744. In Franklin, this coun determined that an action 1s frivolous if it lacks “arguable substance in law and fact.” Franklin. 745 F.2d at 1227. This Circuit has accepted the frivolity analysis formulated by the Court of Appeals for the D.C. Circuit “A court may dismiss as frivolous complaints recit- ing bare legai conclusions with no suggestion of sup- porting fasts estilalin evoats and sircumsiances of a holix fanciful Kind Similarly. ‘a complaint conflicting with facts of which the district court may take judigial noice might also properly be I. PA Gibson 5 41° §79 F.2d 709 17 48th Ce 1976)” dismissed under section 19tSid Id. at 1228 (quoting Croaf 4 Holland. 655 F.2d 1305 1307-08 (D.C. Car. 19812 (pes cusiam)) This analysis seis out three possible standards for dismiss- ing acomplaint as frivolous: 1) does the complaint recite bare legal conclusions without supporting facts” 2) does the com- plaint postulate wholl fanciful events or circumstances’ 3) does the complaint confiict with facts of which a court ma} take judicial notice? (A fourth standard—redundanc, —“as added by Tnipaiv. First Nat ) Bank & Trust, 821 F.2d 1368 1370(1987)). Judge Schroeder combines the second and third Franklin standards. She sees the “judicial notuce™ and the “whollh fanciful” tests as being one In the same. Sec — Schroeder op. at 14465 (“Onl if the facts alleged are imposs! ble in light of any judicially noticeable fact may the district coun And a complaint ‘wholly fanciful’ and hence without arguable substance in law or fact.”) As | read Franklin, the “wholly fanciful” and “judicial notice” standards are two separate possible bases for dism1ss- ing a complaint as frivolous. Under Franklin, a court ma) indeed dismiss an action as frivolous if it is “dependent upon allegations which conflict with facts of which a district court may take judicial notice.” Schroeder op. at 14464 However a coun may a/so dismiss as frivolous an action “postulating events or circumstances of a wholly fanciful kind.” Franklin at 1228. 1 find Hernandez allegations to be indisputably wholly fanciful. “Frivolous.” which UH ebster's Third New International defines as “of little weight or impo.r1ance having no basis in HERNANDEZ ¥ DENTON 1447 3 law or fact.” is derived from the Latin “friuolus.” whict meant “worthless, trashy, insignificant, trifling, silly an empty.” I believe that Hernandez complaint comes withi! either the English or Latin definitions established eal | turn now to the procedures utilized in the federal cou in handling prisoner civil rights cases and the relationship o! those procedures to the determination of frivolity Il] As Judge Schroeder notes, this court has adopted the 1 ommendations of the Prisoner Civil Rights Committee of th Federal Judicial Center (the Committee) relating to se 191 45(d) cases [The Committee] recommends that the court mah the frivolity determination before issuing pro t 1 or protect defendants from the expense and inc nience of answering a frivolous complaint. Fed Judicial Center Re niumended Procedur for H / , , Poo a ¢ Pr ner Cir Rigi Ca , 4 i ( r 59 ( LYA We find persuasive the reasoning of the cases I ing that courts may dismiss frivolous actions hied forma pauperis before service of process and adopt the procedure recommended by the Federal Judic Center and applied here by the district court ecause I served as the Federal Judicial Center Comm) tee’s chair, reference to the reasoning that undergirded tt Committee’s efforts w guide federal courts in the use of sec ; ‘ 7 1 . , mn e's purposes Fir to evaluate the handling pris wor f-confinement cases with the purp mmending such changes as a d t ease the Capac lo give promy{ nous prisoner Cases Second. to help federal judges. mag taff personne eflecti. g € hese difficult-to-handle case star ] 4 er > PD ; > redera lal C¢ Ke } ner Rio I f Rig > nr r y r & her nafter Rer * T ’ P mmit deliberations and hear preser IT tor scas a} rea that most pris g | T ae nr [ . ' cluded prior to tria I , ° | Report at 9 omitted T r r 4 ‘ nmi r » err ‘ To understa the complex p S g tt ry tocay in this area. or mus K al tne Hi pris S No other judicial system in the S ed b + . ] kh ’ y) r I menor b a al iner svsten q Iino > > +} . ) ) igs be hled b yunsel. Recording Xf nt soner c¢ ghts actions hled ar rT p age OF thos ses thal react 1 f ne ( Pe R k T + +> ft; l C4. Annual Reports of the Director t Ad q * * A tive Office of the United States Counts (1 9¢ June 30, 1987, there were 2,825 prisoner civil mghts c pending in the district courts of the Ninth Circuit, id. Tab C.3A (1987), and 2,765 such cases had been terminated dur 3B (1987). Thus. in a 2 ing the court year. Jd. Table ( 447¢ HERnat D period the cases have increased fron if 11 Circuit hast an ominous 1600 perceni, and portionate share of the stress This being so, we must bade fealty to three important § we must ensure that meritorious prisoner ci 1] rights cases d not fall between the cracks. The “cry wolf” syndrome car affect federal judges, especially district judges and mag trates. with what we may describe as a kind of jurisprudentia weariness or fatigue, akin to what the German: H eltschmerz, that sets in from examining Countiess meriti petitions. At the same time. we must “protect defer from the expense and inconvenience of answering a fr A ¢ 1976 A r y er complaint.” Franklin. 745 F 2d a respect our obligation to the federal judiciary to pr equal justice to all who seek relief in the federa ensure the maximum delivery of legal services to al! litiga - pro se as well as those represented Dy In 1980, when the case load was only hall tna ja Committee attempted to reso've these tensions 0D) re mending that in prisoner civil rights complainis the plaint go beyond the requirement of ordinary notice pleading Committee would require the plaintiff to set forth the fa supporting his claim. Admittediy. this 1s a departure Ir notice pleading requirement set forth in Rule §. FR. ¢ I but the Committee reasoned that Rule 8 and other pleadir rules were designed for cases in which the plainufl sented b, counsel. This exception for pro se prisoner con plaints was designed to assist the prisoner in seiting fort the earliest possible moment the facts that formed the basis his complaint so that the claim could be proper!, evaluated The Committee also reasoned that this would encourage th¢ prisoner pro se plain'* to te!' his or her story without fear being injured in the pleading process by not conforming t the niceties of pleading rules that were designed for the us “ac renr as rey BEST AVAILABLE COPY gUSC 81915 ouem « \ ™ the deter tor Al pon tr tne yuri may en ria t for d Rule | 2(bK¢ r at 6; ernphasis added The Committe dismissal with no opportunity to respond when tt mplaint 1s irreparably frivolous or malicious “/d at 6 pu ( rnia De i ‘ Correction 43) } , fC ath Cir 7 (no clanm was stated and there wa jehcie nm the allegations that could be overcon t amendment) In this respect. the Committee accepted ig Har $ 1965 statement that a district pudge may disn she ae ‘ ‘ nr ghts compla withou pr " ~ar ears from the mplair r > ’ od > nr i~ r ree a = ; - 4 nif ki sth € of IA S Tr a4 4 roa . gg ’ he th rule i. ‘ . 4 4 4* 4 ' , : nai 7 iZ a _ Thew ¢ re 1) 4 appea eq c r , r ’ he mer la mn . a pla " +} , ati@ , \ b ne pia | sinter r 4,ery < he was serve 1¢T se r 415d). to which he hied eacer b 5 the specif nature f the plainnfl tb ual deficien n his compla 7 amendmer \ ROS F P. a 44> . 4 & . . <* A , 2 + » 4rmstrong 4 } ZG aia wy » « add ‘ spec’ fics of Hernande n react +} ver ) bier, dey wed 2 ; yy ees recon ended Forn on 4 , 14480 HERNANDEZ \. DENTON July 29, 1982, for on that specific might he went to sleep early, at approximately 8:00 P.M.. and did not wake up until after ten (10) hours. the foliowing morning, at approximately 6:00 A.M. Plaintiff nor- mally sleeps five (5) hours without awakening. but on the night of July 29, 1982, he slept about twice as much as he normally sleeps. ER 43 at 5-6. In this complaint, Hernandez alleges a rape by unknown correctional officers on the basis of putative inferences only. There is no direct evidence that a rape occurred. Hernandez concludes he was raped because he found fecal stains on his teeshirt. slept later than usual. and received.taunts from fel- low inmates. He suggests that he could not have known about the actual victimizing of his body because he slept ten hours that night instead of his normal five. Thus. he would like us to draw two inferences: that he was drugged. and that because he was drugged. he was not aware he had been raped by unknown correcuonal officers A An inference 1s a process by which one proposition (a con- clusion) is arrived at and affirmed on the basis@f one or more other propositions. which are accepted as the starting point of the process. Stebbing suggests that an “[iJnference . . . mas be defined as a mental process in which a thinker passes from the apprehension of something given. the datum. to some- thing. the conclusion. reiated in a certain way to the datum and accepted only because the datum has been accepted.”’ Whether an inference is deductive or inductive depends upon the nature of the relationship between the proposition that 1s given and the proposition that 1s inferred. Hernandez asks us to draw an inductive inference, a conclusion from a congeries 1L Stebbing. A Modern introduction to Logic 211-212 (6th ed 1947) Hresastizs Distros 144% of particulars. From the particular facts asserted in his con plaint. he asks us to draw the conciusion by induction that the defendants can be held liable But whether an inference 1s valid. that 1s. whether the con- clusion is sound and free from flaw, depends upon its logical force: the question of logical force 1s in turn based on the rea- sonableness of the conclusion requested to be drawn Accord ingly. inferences are permitted to be drawn in the law only to the extent that known human experience dictates that certain consequences can and do follow from basic circumstantial facts What has been said in another context 1s relevant here The court's role 1s especially crucial! when. as here the plaintiff's case. and therefore the defendant's lia- bility. is based solely on circumstantia! evidence The illega! actton must be inferred from the facts shown at trial Inferred factual conclusions based on circumstantial! evidence are permitted only wher and to the extent that. human experience indicates 4 4 robahilits that cerain consequences can anc ¢ Pp iat Ce follow from the basic circumstantial facts The inter ences that the coum permits the jun educe in 4 courroom d differ significan from interen that rational beings reach daily in informally accepr- ing a probabilits or arming at a conmciusion wher presented with some hard. or basic evidence Acour ' permits the yum to draw inferences because of | shared experience in human endeasors See 2 re q-~ ~ 4 ¢ rs {cCormick. Handbdook of th -* Law of Ex 289-96 (2d edition 1972 Edward J Sweener & Sons Inc Texace 637 F.2d (3d Cir 1980) I conclude that. under the facts pieadec f the allegations do not qualify as sound. s2.i¢ inferences The test for a permissible inference 1s not «nether human exper ence indicates a remote possifeicty that a particular conciu sion may be drawn Rather. the testis probability was it more 14482? HERNANDEZ ¥. DENTON probable than not that these consequences can and do follow from the narrative or historical facts. In my view. applying the most generous of standards, the desired conclusion may not be drawn from the hard facts pleaded here. | further con- clude that Hernandez can allege no other narrative facts by amendment that will permit that conclusion to be drawn B Even if we were to accept Hernandez’ inference, that he was in fact the victim of a rape, that inference still does not point to the liability of the named defendants. The Civil Rights Act, under which this action was filed, provides Every person who, under color of [state law] subjects. or causes to be subjected, any citizen of the United States to the deprivation of any rights privileges. or immunities secured by the Constitu- uon shall be liable to the party injured in an action at law, suit in equity. or other proper proceed- } > f 2are Ing lor rearess The statute requires that there be an actual connection or ink between the actions of the defendants and the depriva tion alleged to have been suffered by the plaintiff. See Afon Department of Social Servs, 436 U.S. 658, 692 (1978): s also Rizzo v. Goode, 423 U.S. 362 (1976). This court has held that “[a] person ‘subjects’ another to the deprivation of a cor sututional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts. Or omits to perform an act which he is legally required d st Causes the deprivation of which complaint is made.” Johnson v Duffy, $88 F.2d 740, 743 (9th Cir. 1978 [he law is clear that the liability of supervisory personn be based on more than merely their right to control ott Herxanpezy DeENTOo" 44% ers. Afone supra. 436 U.S. at 694 n.S8 At a minimu appellant :s required to show a causal connection between the alleged harms suffered and appellees’ actions. The appe must be shown to be responsible for setting in motion a ser of acts by others. which the appellees knew or reasonat should have known would cause the others to infl tit tional injury upon the plaintiff. Jd. 743-744 ct con Conclusionary allegations. unsupported by facts [will be] rejected as insufficient to state a clain under the Civil Rights Act The plaintiff mu llec : a+ 1 ‘ene 2 - ft o? . allege with at least 5 e Cegree of particula t< hich defendantc «noaced in th anor acts which defendants engaged at sur pla nt F< claim Co { 7 F 2d 4646. 64 ; R43 tations om The defendants are the Dir rT n Superintendent. and member he disciplinan 2 r _—T Th . supnposed!\ estah SEAL assau sere the dis r fap nma bs sine ta whatsoever wa 3 >9 ha A establish the personal in ement in an. allege appellant bv an he de dJants.e Fade narticipa r bv wa knowledge 53 r inmates rre nal officers. F : ad rc ri rnanc Sta men ra n 4 a 7 . : a sts be Be Qua areua m ine tata C de p a ‘ mposing liab he ba . 1¢ “wt an ; om na nd Lica 3 . . P 14484 HERNANDEZ V. DENTON follow from basic circumstantial facts. The basic relevant cir- cumstantial facts here—sleeping late and finding fecal stains on a tee-shirt—cannot reasonably lead to the conclusion that the appellees were responsible for the alleged violations. This is fatal to Hernandez’ case and no amendment can bring it back to life. No amended statement can establish a causal connection between the alleged harms suffered and appellees’ actions. V. We now tum to the Folsom Prison eighth amendment claims: 14. Plaintiff alleges that he was placed in cell 812 in the security housing unit, and was forced to sleep on a sheet metal bunk without a mattress, for one night. Plaintiff was forced t8 borrow one blanket from inmate Raymond Rodnguez, who was housed in the cell neat to his cell. Plaintiff was subjected to ven uncomfonable bedding and suffered from freezing weather conditions. as he was housed in a cell. located across from broken windows. 15. Plainuff alleges that he was denied footwear. because no officer in the security housing unit issued him a pair of shoes ta wear after he was brought from the psychiatric ward: he was forced to go about with- Out shoes for approximately thirty (30) davs The eighth amendment proscribes “cruel and unusual punishments.” U.S. Const. amend. viii. This proscription embodies “broad and idealistic concepts of dignity. civilized . standards, humanity, and decency,” Jackson v. Bishop, 404~ F.2d 571,579 (8th Cir. 1968), against which we must evaluate penal treatment. The amendment draws its meaning from HERNANDEZ V. DENTON 14485 “the evolving standards of decency that mark the progress of a maturing society.” Trop. Dulles. 356 U.S. 86, 101 (i958) Conduct and punishments which are incompatible with those standards, or which “involve the unnecessary and wanton infliction of pain,” are prohibited. Estelle v Gamble, 429 US 97, 102-03 (1976) Measured against these concepts, sleeping in a bunk with- Out a mattress for one night cannot possibly rise to the dignity of an eighth amendment deprivation. Here the majority and I agree. But I disagree with Judge Schroeder's description of the facts pleaded by Hernandez on the blanket claim “Appellant alléges that Re slept without a blanket for an unspecified amount of time in a room across from broken windows.” Judge Schroeder's opimion transcript at |4459 Judge Schroeder's characterization of Hernandez’ factua pleading has no support whatsoever in the complaint Rathe: as indicated above, al) Hernandez alleged was that he “was forced to borrow one blanket from Raymond Rodriguez. wh was housed in the cell next to his cell.” This certainl, does n qualify as an eighth amendment deprivation. Even if we assume that going without shoes for 30 days involves “th unnecessary and wanton infliction of pain.” Hernande gation that an officer in the security housing unit failed : issue him a pair of shoes does not rise-to a colorable claim against the defendants named here. because no one of those defendants was alleged to be the officer distributing the shoes a Under Rizzo » Goode. 423 US 362 (1976). and Department of Social Servs v Monell. 436 U.S. 638 (1978 the mere right to control others. without any control or direc tion having been exercised. and without any failure to super- vise, 1S mot enough to support section 1983 habilit Accordingly. I believe that this eighth amendment contention 1s controlled by the important precept set forth in Mai» Env- moto, 633 F.2d 164 (9th Cir. 1980), to wit, that under the Civil Rights Act, a defendant camnot be charged with respon- sibility for neglectful acts of subordinates, absent that defen 14486 HERNANDEZ V. DENTON dant’s direction or participation. /d at 167. The Civil Rights Act does not permit liability under respondeat superior. Sec Monell, 436 US. at 694. I would affirm the district court's dismissal of these claims Although neither the magistrate nor the district judge dis- cussed them in the written recommendations or in the opin- ion, it cannot be said that the district court disregarded these questions. The entire complaint was dismissed; the com- plaint included paragraphs 14 and 15; therefore, there can be no question that these allegations were dismissed. As a reviewing court, we are in the same position as a district court to test these contentions to determine whether they have arguable merit. In my view, they do not. Vi. ] turn now to the first Vacaville case. In his recommenda- _ tons, the magistrate referred to the facts Hernandez would have alleged had he been permitted to amend his complaint ee ER 21 at 4. The disimet court adopted the magistrate’s findings and recommendations. I. too. shall proceed as if the proposed amended complaint were here before me 1. On or about the 29th day of July. 1983. plainuff alleges that he was ordered to move out of cell L-361. L-wing. unit IV. on the third floor, into the N-2 wing dorm. by Correctional Sergeant Anderson 5. Plaintiff alleges that on the 30th day of July. 1983. he filed an inmate/parolee appeal form (602) with defendant Hartman’s and defendant Ingle’s office. wherein plaintiff complained about housing condi- tions and also claimed that he had found signs and evidence of sexual assault and rape on his clothing. and that he believed one or more inmates housed in the same dorm as him, assaulted and raped him on the night of July 29, 1983. HERNANDEZ V. DENTON yN 14487 4 6. Subsequently. plaintiff alleges that he discovered four needle puncture wounds on different parts of his bods: on the 2nd day of August, 1983, plaintiff displayed one needle wound on his right wrist to defendant Ingle: on the 3rd day of August, 1983. plainuff displayed the same needle wound to his supervisor. at the law library. and two more needle wounds plaintiff had discovered on the calf of each leg: on the 6th day of August, 1983, plaintiff discov- ered a fourth needle wound on his left wrist, and dis- played this needle wound to Officer Kreger, the N-2 wing dorm officer on the second watch. on the same day plaintiff was given permission to move out of the N-2 wing dorm and into a single-man cell in the same wing 9 All the events described 'n paragraph five (5) were witnessed by inmate Harold Pierce: his affidayit 's attacked wothis amended pleading as Exhibit G (Ex- hibit G reads: “Harold Pierce hereby declares On the night of July 29. 1983. I witnessed inmate Dushane B-71187 and inmate Millard B-30802 assault and rape inmate Mike Hernandez as he !a asleep in bed 206 1n the N-2 unit dorm © 18. Pla:ntuff alleges that on or about the 15in an 16th dass of December. 1983. he found signs and evidence of rape and sexual assault on his clothing and reponed it to Officer B. Da Rosa on Dec ember 17, 1983 ER 11 at 3-6 4 The foregoing facts, if believed. do not make out a va constitutional claim against the prison official detendan under either the due process clause or the eighth amendment Again. Hernandez offers no direct evidence that he was raped He relies only on the suggestion that somehow he was drugged 14488 HERNANDEZ ¥. Dinton and then raped while asleep. His only effective evidence 1s the affidavit of Harold Pierce describing events allegedly occur- ring on the night of July 29, 1983. That affidavit may have been sufficient to establish a state tort claim against inmates Dushane and Milliard, but 1 is insufficient to establish that the named defendants knew or should have known of these events and taken steps to prevent then. See Procunicr \ Navarette, 434 U.S. 555, 562 (1978), Afar v Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy. 588 F.2d 740. 745 (9th Cir. 1978) Vil The remaining appeal also involves events at Vacaville. In this complaint. appellant alleged he was raped as follows 1. During the night of January 12-13. 1984. by defendant McIntyre and two inmates. based on nee- die marks: 2. During the night of January 26-27. 1984. also by McIntyre and two inmates. based on needle marks 3. During the might of March 22-23. 1984. by unknown persons but believed to be defendant Per- domi, based on finding needle marks on his right wrist On the morning of March 23. 4. During the might of June 28-29. 1984. bs unknown persons but believed to be defendant Per- doni, based on finding needle marks on his left arm right wrist and right ankle on the morning of June 29; 5. On August 4 and August 23, 1984, during the 1:00 P.M.-3:00 P.M. watch, believed to be by defendant Perdoni, based on appellant's discover of needle marks; HERNANDEZ V. DENTON 4489 1 6. On September 11, 1984, during P.M.-3:00 P.M. watch, by defendants Fitzgerald ar Price, based on discovery of a needle mark on hi thumb On September 16, 1984, during P.M.-3:00 P.M.. watch, by defendant Price. ba on discovery of needle marks on his left arm ar right wrist 8. On September 21, 1984, shortly before 7:00 AM by defendants Perdoni and/or McIntyre, based awakening feeling ill and nauseous and discovering needle marks on his abdomen 9. During the night of September 2¢ Ik defendant MclIntvre. based on awakening ver needle marks on his left arm and addon On Octob ~ Ik4. bv d ja M based awakening to dis erar Jie mara x ar Vurine ‘ 984. by defendant M fe ah n () § 4 n ry arm anc adgon > Durine th oh i ~ y I&4. by defendant Melr ba A ab A , "Or mi Wu . a r i T r defe jar Tomlir ba aw ak dic » e mark n his left arn h 2 rv nir b I eo 2 a £ ) vf 14490 HERNANDEZ V. DENTON to discover needle marks on his left wrist and right leg: and 15. During the early morning hours of December 10 1984, by defendant McIntyre, based on awakening to discover a needle mark on his right arm Appellant also alleged that as a result of these various sexual! assaults and drug injections, he suffered fevers. bacteriologi- cal skin infections, headaches, nausea, sinus infections and facial scarring, and that institutional physicians refused his request for antibiotic medication A To place this appea! in perspective, it is helpful at this point to summarize the other two appeals before us In appea! \ 86-2139, in his amended complaint, Hernandez said he had been raped by correctional officers at Folsom Prison on Ju! 29, 1982. He reached this conclusion in the hypothesis that he found “signs of rape” on his tee-shirt, to wit. fecal stains. and that on the morning of July 30, 1982. he was ridiculed t unidentified correctional officers and inmates about having been raped the night before. He had no personal recollectior of having been raped and made no identification of his sur posed rapist. In appeal No. 87-1693, his proposed amend: complaint contends that he was again raped—this time at Vacaville—on precisely the same day of the vear as the } som rape, but one vear later, on July 29, 1983. Again, he cluded that he had been raped because he found “eviden of sexual assault on his clothing, viz, feces and semen stair on his shirts. He also claimed that he found a needle wound yn his right wrist on August 2. 1983. two needle wounds on each of his two legs. on August 3, 1983; and another need wound on August 6, 1983. This time he alleged that his rapis! were inmates, not correctional officers. Here. too, he had personal knowledge of having been raped and made no ide tification of his alleged rapists Heenanoez v. Dextor 1449 I now turn to an analysis of the massive complaint invols ing events at Vacaville in 1984. Here Hernandez alleged tha he had been raped 21. repeat 21. umes. Hernandez named the Superintendent of the Cahfornia Medical Facility at Vaca ville. a correctional heutenant, and sia correctional officers as | defendants. Of the alleged 21 acts of rape. four were alleged committed by inmates. Although Correctional Officer Mclr tyre supposedly committed nine of these rapes. appellant's | complaint contains no fact capable of establishing that Melr ' | | | tvre. direct!, or by inference. or any of the other defendants assaulted him. Here. too, he has no personal recollection of having experienced these sa\ age assaults His conclusions are based solel, on the alleged discovery of needle punctures or his body. After these repeated acts. he complained he suffer f bacteria and acne on his face Irrespectise of the outcome of this lhtigation, nm acknowledged that Hernandez has established a world capable of qualifying for the Guinness: Book R | person who has been raped 28 separate umes » knowing at the time that this was hapf g r > as an experienced student and researcher in 5 rights petitions. | b ha t apy é r ‘ f Tt a chee a ce Th an be und ny g ne t pella sas Giag F Pr as a 1 eT r irea r “ 3 fe , purp ar 3 7 at at Ala ; Sta ER a Eve 4 T Rg apptiia $ fa r r t ar e d . 7 HER NANDE Dr , t {i middle term.’ In a formally va g al syllogism, the middie term must be distributed in al ne of the premises. If either the minor tern i} distributed in the conclusion, it must O« } ted in the premise in which it originates * Here. the mid zg j needle marks” 1s undistributed in both the major anc premises. It does not necessarily follow that ai! nee } ks are evidence of drug ingestion simply because ; See eg. Spencer. Texas, 385 U.S. $54, 569-570 (19¢ “a ss : er F ‘ gism “B™ dis ses the forma) falia iu term Here the maior term in the syllogisn raf t tine major premise can De frat t was raped ] Mund pt . rmenta f ‘jis’ 4 , ‘ ‘ Fe of ‘ 14494 HERNANDEZ V. DENTON minor premise because it refers only to the defen- dan. correctional! officials, not the entire universe of correc- tional onveials. But even if ernandez’ arguments met the requirements of formal logical form, they would still contain fatal defects. The arguments contain material fallacies, that is. errors or eva- sions that appear only through an analysis of the meaning of the terms, rather than an analysis of the logical form. For example, each syllogism is a mon sequitur, an argument exhib- iting the lack of a logical connection. From the mix of pleaded facts—needle marks, fecal stains on a tee-shirt. sleeping later than usual on one occasion—any conclusion pinning liabilit\ on the defendants here is a paradigmatic non sequitur. See materials collected in R. Aldisen, The Judicial Process 626-87 (1976). IX. Ata very minimum, appellant is required to Show a causal connection between the alleged harms suffered and the actions of the deferfdants Hernandez’ theors that he was raped is based only on the factual allegation that he discov- ered needle marks on his body the morning after the alleged incidents. As a matter of law, the conclusion that he had been raped cannot be drawn as a permissible, let alone a reasonable inference from the needle marks; a fortiori, the presence of the needle marks as a major premise cannot by any logical process lead to a conclusion implicating the named correc- nonal officials as perpetrators of the rapes. But what is of paramount importance here is that no amendment of facts in the complaint can cure this fatality given the theory advanced and the inferences required. This is a Classic example of the precept set forth in the H or/c) Armstrong, and Noll line of cases—if it clearly appears that ™~ > HERNANDEZ ¥. DENTON 14495 the deficiency in the complaint cannot be overcome by amendment. the district court may dismiss under section 1915(d) without genuflecting to the needless ritual of giving the plaintiff the opportunity to amend a second time before entering an order of dismissal. This precept was reaffirmed as recently as April 26, 1988, by this court in Albrechi v. Lund, 845 F.2d 193, 195 (1988). (“If the district court determines that the ‘allegation of other facts consistent with the chal- lenged pleading could not possibly cure the deficiency,” then the dismissal without leave to amend is proper.”) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393. 1401 (9th Cir. 1986)). 1 would affirm the judgment of the district court in all respects for the reasons stated herein. The grand purpose of prisoner civil rights petitions under section 1983 is to insure that the structured society within penal institutions possesses the minimum accoutrements of civilized order. It 1s to elimi- nate savage and barbarous treatment. It should not be prosti- tuted by the hallucinations of a troubled man. And that 1s what we have here ATTACHMENT Z IN THE UNITED STATES COURT OF Oe d | L E D FOR THE NINTH CIRCUIT Aon FE8 1+ 1389 CATHY A. CATTERSON. CLERK U. S. COURT OF APPEALS Nos. 86-2139 87-1693/1694 MIKE HERNANDEZ, Plaintiff-Appellant, Vv. D.C.# CV-S-83-645-LKK GEORGE F. DENTON, et al., ORDER Defendants-Appellees. Before: ALDISERT,* WALLACE, and SCHROEDER, Circuit Judges. The panel as constituted above has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R. App. P. 35. The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. *Honorable Ruggero J. Aldisert, Senior Unitrd States Circuit Judge for the Third Circuit, sitting by designation. CASE TITLE: GEORGE F. DENTON, et al. v. MIKE HERNANDEZ COURT/CASE NO: | SUPREME COURT NO. 88-2034 PROOF OF SERVICE I am employed in the County of Sacramento; my business address is 555 Capitol Mall, Suite 950, Sacramento, California. I am over the age of eighteen years and not a party to the foregoing action. On July 6, 1989, I served the within BRIEF OF RESPONDENT RE PETITION FOR CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT on all parties in said action by placing a true cop» thereof enclosed in a sealed envelope, with postage thereon fully prepaid, in the United States post office mailbox at Sacramento, California, addressed as set forth below: JAMES CHING, Supervising Deputy Attorney General State of California 1515 K Street, Suite 511 Sacramento, California 95814 Mr. Mike Hernandez C-49192 California Medical Facility P. O. Box 2000 Vacaville, California 95696-2000 I declare under penalty of perjury that the foregoing is true and correct. Executed on July 6, 1989, at Sacramento, California. . a” LM Ce P. A. Le Doux --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0906%3A2. Public record. Not legal advice.